Hamilton v. Mayor And Council Of City Of Charleston, 8245.

• Citation: 182 S.E. 575
• Decision Date: 22 October 1935
• Docket Number: No. 8245.,8245.
• Court: West Virginia Supreme Court
• Parties: HAMILTON et al. v. MAYOR AND COUNCIL OF CITY OF CHARLESTON.

182 S.E. 575

HAMILTON et al.
v.
MAYOR AND COUNCIL OF CITY OF CHARLESTON.

No. 8245.

Supreme Court of Appeals of West Virginia.

Oct. 22, 1935.

Rehearing Denied Dec. 13, 1935.

Syllabus by the Court.

1. The maintenance of fire departments being a matter of general public interest, and not merely of local concern, the Legislature has power to require all cities and incorporated towns which have, or may hereafter have, a fire department, supported in whole or in part at public expense, to establish and maintain a firemen's pension or relief fund, if practicable within constitutional limitations.

2. The Legislature may not invest the boards of trustees of the firemen's pension or relief funds, in cities of more than 20, 000 population, with authority to fix and determine the amount that the councils or other governing bodies of said cities shall levy in support of said funds.

Original mandamus proceeding by J. H. Hamilton and others against the Mayor and Council of the City of Charleston.

Writ denied.

Barnhart & Trotter, of Charleston, for relators.

Philip H. Hill and P. G. Meador, both of Charleston, for respondents.

WOODS, Judge.

J. H. Hamilton, R. L. Gay, and W. T. Stone, as taxpayers, voters, residents, and members of the fire department of the city of Charleston, seek, by mandamus, to require the mayor and the council of said city to provide, by proper ordinance, for the establishment and maintenance of a firemen's pension fund, in accordance with the provisions of Code 1931, chapter 8, article 6, as amended by chapter 69, Acts 1935, Regular Session of the Legislature.

The original act (chapter 45, Acts 1917) authorized any municipality whose fire department was supported in whole or in part at public expense, upon declaration, by ordinance, of the necessity thereof, to establish a firemen's pension fund, and, in aid thereof, among other things, conferred upon said municipality the right to lay a levy, and to create a board of trustees to administer the fund. The establishment of such fund was discretionary with the council or other governing body. Section 10 of chapter 69 of the Acts of 1935, however, provided, among other things, that "the council or other governing body shall, by ordinance provide for the establishment and maintenance of a firemen's pension or relief fund, " etc.; section 13, that the board shall consist of the mayor or other chief executive officer of the municipal corpora-

[182 S.E. 576]

tion and four members of, and chosen by, the fire...